RFRA blithely assumed unconstitional as applied to federal law

[Andrew Koppelman]

I don't understand what Jonathan Mallamud is claiming here.  If RFRA were
read, at least with reference to federal law, as carving out a body of
religious exemptions, how would this have indicated disrespect for the
Court's decisions?  Haven't the Court's decisions, Smith v. Employment
Division among them, indicated that legislatures have discretion to enact
religious exemptions if they choose to do so?  In upholding RFRA exemptions
from federal law, would the Court not merely be following Smith?

At 03:43 PM 10/23/97 -0400, you wrote:
>Regarding whether Flores may support an argument that RFRA exceeds
>congressional authority, Garrett Epps says that he does not buy that Flores
>lends itself to that interpretation.
>
>        I think that it is an open question.  All EV said was that it
>"doesn't dispose of the federal RFRA claims."
>
>        In Flores Justice Kennedy says (117 S. Ct. at 2172):
>
>        "When the political branches of Government act against the
>background of a judicial interpretation of the Constitution already issued,
>it must be understood that in later cases and controversies the Court will
>treat its precedents with the respect due them under settled principles,
>including stare decisis, and contrary expectations must be disappointed."
>
>        The question is whether Congress amended federal law or sought to
>reimpose (or impose) a standard for applying the First Amendment.  There are
>enough references to particular cases and doctrines (compelling interest
>test, Smith,  Sherbert &c.) in RFRA for the Court to find that Congress
>acted against "the background of a judicial interpretation" and was
>required, at least insofar as cases reaching the courts are concerned, to
>have respected the Court's decisions.
>
>                Jonathan Mallamud   Rutgers-Camden Law School
>                   mallamud at crab.rutgers.edu
>

________________________________________

Andrew Koppelman
Assistant Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
akoppelman at nwu.edu
________________________________________